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MINOllITY IIEPOIIT 

OF THK COMMITTEE ON FEDERAL RELATIONS, RESPECTING 
CERTAIN RESOLUTIONS RELATING TO THE IMPORTATION 
OF SLAVES. 



The undersigned, a minority of the Committee on Federal Relations, to 
whom were referred certain resolutions relating to the importation of slaves, 
asks leave to report : 

That he has maturely considered the same, and now respectfully submits 
to the Senate some of the views upon which his recommendation rests. It 
is undeniable that this importation was the origin of the system of slavery 
existing in this and other Southern States. But the policy of such impor- 
tation noio is questioned, on the ground that it would be injurious to the 
very system which grew out of it — that a further supply of the nutriment 
which fed the young twig would kill the full grown tree. It is not proposed 
to discuss this fully, time and apace forbidding it. But one objection will 
be considered. It is objected that this importation would be ruinous to the 
vested interests of the South by the anomalous process of first reducing the 
price of slaves, or, in other words, the cost of production, and then by reducing 
the price of their produce. To do which, has even been called " agrarianism." 
To show the error of this, the following views may sufiice. 

THE QUESTION OF POLICY. 

It is an economic axiom that '' labor is the source of vnlue." We learn 
from Holy Writ, if not from our own observation and rei 3tion, that "all 
flesh is grass." But there can be no labor without "flesh," nor "grass" 
without land. Hence to arrive at value we must have both labor and h-nd. 
They are co-ordinate pre-requisites of production — the first cause, so far as 
visible agency goes, in agriculture. Upon agriculture depend all other pur- 
suits. It produces — they con.sume. It supplies the raw material for, and 
thereby stimulates consumption. To cheapen or increase production, th-jre- 
fore, is to invite and secure, and thereby increase and extend consumj t. 

But the cost of production includes the cost of labor and land, an ^ 
course, a cheapening of production involves a cheapening of one or the other. 
Hence a comparative increase of consumption depends upon a reduction of 



the first cost. The reason is obvious. The lower the first cost, the lower 
may be, and where there is competition and free trade the lower toill be the 
second, third, and all succeeding costs attached to the article in its various 
stages of transfer, manufacture and consumption. It is thus the interest of 
consumers in general, that the first cost of production in general shall be 
low. But all men are consumers of the great staple products of the earth; 
some of one sort, some of another. It is, therefore, a general truth, that 
cheap production is to the interest of all departments of industry. That is 
to say: It is the interest of all " flesh" that " grass" should be abundant- 
cheap; of all men, that food, laiment, and all the means of subsistence 
should be abundant— cheap. And since it is only by labor that these can 
be had, it follows that it is the general interest of mankind that labor should 
be abundant, available, cheap. 

This general position maybe obnoxious to special objections. Every man 
wishes to sell at a high and buy at a low price. One hhs corn to sell — he 
wishes the price high; but he buys everything else he consumes, and of 
course, wishes the price of everything else low. The same is the case with 
those who sell cotton, rice, or any other property. From which it appears 
that every producer wishes some particular product high, and all or most 
other products low. And since no one particular product represents the 
united interests of the community, it follows that the high price of none can 
be the sole interest of that community. How then are these conflicting in- 
terests to be reconciled ? The answer is, by letting /ree trade establish its 
own equilibrium. Let every particular interest, with its own special objec- 
tions, find its appropriate level in the scale of progress and development, its 
true interest lying, not in theoretical desertation, but in a hearty and open 
competition, a true economy and cheap labor. 

Labor, then, being in universal requisition, the quantity present in any 
country, as compared with the demand for its produce, may ordinarily deter- 
mine its price. If this is unusually high, we may be assured there is an 
excessive, or at least a growing demand for produce, to meet which there is 
a deficiency of labor. Such deficiency, it will hardly be denied, now exists 
in the agricultural department of Southern industry, and particularly in 
South Carolina, and is the chief reason why the price of slave labor is so 
high. No other than negro agricultural labor is available at the South, and 
there are but two means of increasing it — by the natural propagation of the 
race here and by importing Africans. The first of these does not suffice for 
the wants of the country, or the deficiency would not exist; to the latter, 
then, alone can we look for the requisite supply. 

But so far as the price of slave labor depends upon the quantity present, 
or the rate of its increase, the means by which an increase may be effected 
is of no consequence. It is an increase in the number of slaves, not their 



nativiti/, which this objection contemplates. Of course, then, evei-y means 

' of increase is equally objectionable, and natural increase is essentially just 

^ as ruinous to the vested interests of the South as any other. This is the 

C logical statement of the postulate upon which the objection is based. Its 

^-^ validity may be tested by the evidence of history. 

During the last forty years some of the districts in this State have de- 
creased in their slave population, some have been stationary, and others have 
rapidly increased. The five coterminous districts of Beaufort, Colleton, 
Charleston, G-eorgetown and Horry, have had but a trifling increase in their 
aggregate slave population, while the five other nearly coterminous districts 
of Abbeville, Edgefield, Eichland, Clarendon and Darlington, have about 
doubled theirs. In 1820, according to Mills, the total value of the agricul- 
tural products of the former was 88,095,000, and that of the latter was 
$3,240,000. In 1850, according to the U. S. Census, the former produced 
less than half as much corn as the latter, and only a little over one-fourth 
as much cotton, being 63,000 bales less. The rice crop of the former, being 
2,590,000 bushels, and the superior value of the Sea Island cotton, taken 
together, would probably balance the deficiency. So that if we put down 
the crops as equal at the present day, it appears that, whereas forty years 
ago five of these districts yielded but little over a third as much agricultural 
produce as the other five did, they have now doubled their labor and yield 
quite as much as the latter, whose labor has been stationary, but whose soil is 
nevertheless quite as productive. The undersigned submits that demonstra- 
tion cannot be more conclusive of the fact that the increase in the number 
of slaves in these districts, so far from proving disastrous, has been the cause 
of their increased wealth and prosperity. The same may be said of the new 
South-western States. And this illustrates the fact, which should never be 
forgotten, that whatever the means of obtaining labor, whatever the nativity 
of the laborer, the efi"ect produced upon the soil is the same under the same 
circumstances. Whether our negroes are raised at home, or imported from 
Virginia or Africa, their labor obtains produce from, and thereby gives value 
to the land, and theirs alone. 

It is a fundamental truth, that, for agricultural purposes particularly, labor 
imparts value to the land, but it has peculiar and augmented force in slave 
States, where they are owned conjointly. Slave labor at the South, though 
transferable from farm to farm, or State to State, is of the nature of a fixture 
upon the soil, and the value it imparts is stable and tangible. It is subject 
to no contest with capital, for it is as completely possessed by capital as the 
land is. It is not only a fixture but a necessity, for the cliuiate admits of 
uo other. But not only does labor impart value to land— the products of their 
joint agency stimulate every department of industry. An increased value 
of real estate is only one result of a competent supply of labor. With 



abundant labor our white population would c;vow apace, diversity of pursuits 
would follow, wages would seek the idle, the poorer classes of our white popu- 
lation would of necessity be benefitted by an expansion of the mechanic arts, 
the prosperity of the handicrafts, the introduction of factories, and the 
thrifty stimulus of trade; industry would replace sloth, and smiling comfort 
would cast out misery. A bright day would dawn upon a new and invigor- 
ated generation. Their energies would be roused to higher motives and 
nobler efforts, ending in far more successful results than we witnesa now. 
The winged spirit of enterprise would prosper every interest, and the people, 
in their social intercourse and public assemblies, would acknowledge that, 
after all. South Carolina has met with no disaster — the commonwealth has 
suffered no detriment from an increase in her resources and the number of 
her slaves. 

But this matter of " price" is presented as a simple question which every 
one can answer. If a farmer, or any one else, wishes to purchase a slave, 
which would he prefer, paying a high or a low price? Do men buy slaves 
with a view to putting as much capital as possible in a given number of 
them, or with a view to investing the least capital, and clearing the greatest 
profit out of their labor "/ This is the true economic question. The differ- 
ence of opinion in this regard seems to lie between those who measure their 
wealth by the high rates at which they have invested, and those who take 
the profits of their investment as the index of their prosperity. One view 
is, that sinc^many have invested at high rates they would be injured by a 
reduction in price, though they have no intention to sell. The other is, that 
the investmentis at too high a rate to yield a fair profit. That in consequence 
of the laws, which prohibit a competition in the slave markets of the world, 
the jj;-/ce of slaves is elevated far above their value. Many are prepared to 
Invest at the price which unrestricted trade would establish. For the law of 
supply and demand, unaffected by statute law, is the only law which secures 
a mutual advantage to buyer and seller — it alone establishes the true level of 
trade and properly regulates its fluctuations. But, on the other hand, it 
may be answered, though it be the farmer's interest to buy at a low price, it 
is equally his interest to sell at a high price. Financially viewed, this is 
true. And it is by analyzing these apparently conflicting interests, which 
centre in every slave holder, as well as any other proprietor of property, that 
the solution of the question can be reached. The undersigned believes that 
slave labor should not be under any restriction which is not necessary for its 
well being and that of society — that slave property should be as open to 
competition, and as free from burdens and prohibitions, as any other property 
— that the traffic in slaves should be as exempt from Federal countenance or 
discountenance, from Federal encouragement or denunciation, permission or 
prohibition, as any other traffic — in short, that the principle of free trade 



and loio duties applies equally to cotton negroes as to cotton fabrics, to African 
slaves as to British wares; not that the one is so purely chattel as the other, 
but because the ri(jlit of jiroperiy is the same in essence, and dift'ers only in 
circumstances, as other descriptions of property must. And since, whether the 
market be that for African slaves or British wares, the seller wishes high and 
the buyer low prices, the question is pertinent, how can statute law, directly 
or indirectly, designedly or undesignedly, elevate or depress the 'price, without 
favoring one or the other party to the transaction — without disturbing the 
compensating principle of trade — without destroying that equipoise of inter- 
est which is the onlj' true basis of reciprocal benefit in commerce ? 

Besides, in the slave market, the number of vendors is exceedingly few, 
compared with the number of vendees; and the number of slaves sold, com- 
pared with those not sold, and never to he sold, is still fewer. Then, since 
low price is to the interest of the vendee, and high price to that of the 
vendor, and respectively of them only, it is evident, in the first place, that a 
large majority of slaveholders are interested in having the price low, and in 
the next place, that Southern non-slaveholders, having no slaves to sell, are 
not interested in high price, but possibly, at some future time becoming 
purchasers, may be interested in low price. Here, then, is an overwhelming 
majority of the Southern people not pecuniarily interested in high price ; 
and if the rule be applied, which prescribes the greatest good to the greatest 
number, the question of price must be decided in favor of a reduction. The 
undersigned, however, does not advocate this rule. It is tl:^^ duty of re- 
presentative Government to defend minorities, majorities being generally 
able to defend themselves — but it must be done withuut violating rights. 

Let every slaveholder ask himself whether he has sold, or expects to sell, 
more slaves than he has acquired, or expects to acquire, either at a nominal 
or real price. Has he sold more than he has bought or inherited — does he 
expect to sell more than lie expects to buy. It will be found that a very 
large proportion of southern slave owners will have bought, and will expect to 
buy, many more slaves than they have sold or expect to sell ; and thus it is 
again apparent that reasonably low price has the preference, and is to the . 
true interest of the South. There can be no well founded objection to the 
price of slaves being high, if it is established and reyulated ly the same laws 
which establish and regulate the price of other property — the natural laws of 
trade unrestricted by statutory prohibitions. All contended for, on this 
score, is, that the price of slaves, like that of other property, should be 
determined by the safe and certain laws of supply and demand. Any inter- 
vention of Congress which affects this price, is of the nature of those protec- 
tive tariffs which are so generally complained of by the South. If it is right . 
for Congress, by prohibitory enactments, to eiihancc the price of slaves, for 
the benefit of the slaveholder who wishes a high price for his slaves, it is 



6 

difficult to determine upon what ground it is wrong for Congress, by tariff 
acts, to elevate the price of domestic manufactures, for the benefit of the 
inanufacturer, who just as reasonably wishes a high price for his wares. If 
it is right to take money out of the buyer's pocket and put it in that of some 
favored seller, in one case, it is right in the other. 

It may be said that these prohibitory, unlike the tariff acts, were not in- 
tended to affect the price of slave labor, and thereby protect and promote the 
sale of American born negroes, as those acts protect domestic manufactures. 
This may be true, but the effect assurredly is to enhance that price, by exclu- 
ding foreign competition and establishing a monopoly at home. The pro- 
hibition of the importation of slaves must, of necessity, either elevate the 
price above the standard which foreign competition and free trade would 
establish, or not. If it does, whatever may be the intention, it is, in effect, 
protection ; more, it is monopoly. If it does not, its repeal cannot injure 
the interests already vested in slave property, and the objection now under 
discussion must fall to the ground. 

Another fact to be considered in this connection is, that the reduction 
in the price of slave;; consequent upon their importation, must necessarily 
be so gradual as not to occasion any disturbance in business affairs. It must bo 
remembered that no new branch of trade, no new department of industry, 
and no acquisition of facilities, can be so suddenly entered upon as to occasion 
injury to the former pursuits of men. The steam engine has totally changed 
the old syst^is of manufacture, manipulation, travel and transportation, but 
it required half a century to do it, and nobody ever heard of the owners of 
factories, cotton gins, mills, sail vessels, stage coaches and freight wagons 
being ruined on account of application of steam as a motive power. Wit- 
ness, too, the immense tide of emigration to California and Australia, and the 
endless stream of gold which pours into Europe and America from those 
sources ; though all this has been the work of but ten years, no inconveni- 
ence has been felt in any single investment, not even has our metallic cur- 
rency, the most sensitive of human agencies, been disarranged. Why, then, 
should the importation of lahor, the source of value, be expected to bring ruin 
upon the country ? Negroes, it must be remembered, can not be picked up 
in Africa and brought to America at will. They have to be paid for, and 
their expenses incurred; in addition to which, no African will ever bo 
brought here whose labor is not wanted. People do not buy, nations do not 
import, what is not wanted. And nobody buys negroes for the mere love 
of buying them. Let, then, the number imported be what it may, they must 
he paid for, and that, too, o^tt of the profits of interests already vested. But 
if those interests can afford to import slaves, it will not be ruinous or disas- 
trous for them to do so ; and if they cannot afford to import them, it is very 
certain they will not. 



There is a truth for which economists vouch, and which, in fact, is self- 
evident : " The demand for labor must exist before laborers can be em- 
ployed/' '' Capital alone can put labor in requisition." The demand for 
slaves, and the capital to pay for them must esist before slaves can be im- 
ported. And, since, from the very nature of the case, this demand and 
capital depend upon the prosperity of the vested interests of the South, it 
follows that no more slaves will ever be imported than such prosperity wai*- 
rants, which precludes the possibility of disastrous consequences. 

In view of these considerations, the undersigned submits, without further 
remark, that the natural increase of the slave population of the Southern 
States is insufficient to supply the demand for slave labor. That an increase 
in the productive capacity of the South, by means of importing labor, would 
enhance the value of real estate; that it would, at the worst, not injure the 
non-slaveholder; that it would benefit the slaveholder; that it would extend 
the influence and area of our social and industrial systems ; that it would re- 
move an arbitrary and hurtful restriction upon slave property; that it would 
leave price unfettered ; and that the effects, of whatever nature, must be 
gradual, and subordinate to pi'e-existing natural causes ; while the number 
of slaves imported must be limited by the amount of capital seeking in- 
vestment of that sort, and by the very nature of the demand for labor. 

It is a source of gratulation with statesmen that the principles of free 
trade are taking root, and that the commercial world is steadily breaking 
down the barriers which obstruct their growth. If Southern statesmen are 
of the number, and their joy is founded in principle and not interest, it is a 
reasonable hope that they will seek to apply the principle generally. We 
see the world around us striving to develope every hidden or dormant re- 
source. ''Free labor" so called, is invited, at a premium, to circumnavigate 
the globe ; it is forced, by necessity, to the conditions of a foreign hireling ; 
and it builds up wealth for the people who have the will, the energy and the 
power to put it in requisition. The South, on the contrary, teeming with 
resources, is forbidden to look beyond her limits for any kind of labor in her 
fields. Her hands are tied hi/ her own misguided ads, and all now urged is 
their re-consideration and repeal. 

But it is further objected that the importation of slaves would result in 
over-production, and a consequent glut in the market, with a ruinous fall in 
the price of cotton and other produce. This is partly answered by what has 
already been said. The assumption of such a fall in the price of cotton is 
predicated on a proportionate increase in the nflmber, and consequent fall in 
the price of the slaves employed in growing it. In other words, the fear of 
a fall in the price of cotton is based upon a supposition which involves a cor- 
responding fall in the cost of producing it. Nor could such fall be sudden ; 



8 

and it is only the suddenness in a change of business relations and liabilities 
which leads to disaster and loss. 

But can the cotton-planting interest be such as to rely upon artificial 
means for remunerating prices? There is no principle which will protect 
rrtio cotton that will not protect manufactured cotton. And if protection 
of the former is desired at the hands of Congress, the question assumes a dif- 
ferent phase. But while the principles oi free trade are professed, no excep- 
tions can consistently be made in favor of raw cotton or against African 
slaves. Nor is it more probable that an importation of labor would reduce 
the price of raw cotton to a more ruinous extent than the invention of such 
"labor-saving" machines as have been the wonder of modern times, has re- 
duced the price of the articles to the manufacture or preparation of which 
they are adapted, and to which nobody objected. Does the thrashing ma- 
chine and tlie pounding mill injure the rice planter; or the gin the cotton 
planter ? Yet are they not the equivalents of the labor employed in the 
preparation of rice and cotton before their invention ? 

The undersigned will now, with great deference, invite the consideration 
of the Senate to the constitutionality of the Acts of Congress prohibiting the 
importation of slaves into the limits of any one of the sovereign United 
States. 

THE CONSTITUTIONAL QUESTION. 

In expressing the opinion that the Acts of Congress prohibiting the im- 
portation of slaves are unconstitutional, the undersigned acknowledges 
that mature investigation and reflection have changed his former opinion ; 
he is aware, also, that it may be regarded as venturing much so to classify 
a course of legislation, the legality of which has not till recently been 
questioned. But truth and principle cannot be changed by time, neither 
ought error to be made rightful under its sanction, however illustrious they 
may be who have fallen into it. Besides, this is not the only instance in 
which unconstitutional measures have received the general consent of Con- 
gress. We have but to remember the "Ordinance of 1787," passed under 
the old confederation, as Mr. Madison truly says, "without the least color of 
constitutional authority;" the 25th section of the Judiciary Act, passed 
by the first Congress, under the present confederation, which Mr. Calhoun 
has shown "is unauthorized by the constitution ;" the Alien and Sedition 
Acts, nullified by Virginia and Kentucky ; the Act of 1804, prohibiting 
the importation of slaves into the "Orleans Territory;" the Missouri Com- 
promise; the Protective Tariffs; the Force Bill; and the more recent open 
violations of the compact, to be satisfied that, in Congress, unconstitutional 
legislation is no new thing. 

It may be safely assumed, for it would be idle to deny, that authority to 



9 

prohibit the slave trade, after 1808, is not granted in the clause of the Con- 
stitution which forbids such prohibition prior to 1808. And though this is 
generally conceded, this clause is viewed as evidence of the existence of the 
authority by virtue of some other clause. If Congress were the legislature 
of a sovereign State, having plenary powers over all subjects not prohibited 
in the Constitution, the authority would certainly have rei'crted after the 
year 1808. But Congress is not a body of this nature. Its powers are 
limited to those only which are expressly enumerated. Its authority is purely 
and essentially derivative. Therefore, if after the year 1808, it was invested 
with the authority it exercised, it must have been derived from, and dele- 
gated in, some one of the enumerated powers ; either expressly or by neces- 
sary implication. Is it thus derived and delegated ? 

It is claimed to be derived from the general authority to '' regulate com- 
merce," (/. e. necessarily implied in that power.) But there are good reasons 
for denying this, which will be presently advanced. In the mean time, it is 
urged that the clause in question is a qualification of the power to regulate 
commerce — that it is an exception which excludes, for the time of its limi- 
tation, what otherwise would have fallen within the general power to regulate 
commerce. That this is erroneous will now be shown. 

A perusal of the Constitution will satisfy Senators that in most cases 
where there is a qualification or an exception to a grant or provision iu that 
instrument, it is made to accompany it. 

Art. 1, sec. 2, clause 3, provides for the apportionment of representatives 
and direct taxes, and limits the number of representatives to one for every 
thirty thousand inhabitants, with this qualification or exception : " hut each 
State shall have at least one representative." 

Art. 1, sec. 8, clause 1, gives Congress power " to lay and collect taxes, 
duties, imports and excises," with this qualification : " hut all duties, im- 
ports and excises, shall be uniform throughout the United States." 

Art. 1, sec. 8, clause 11, gives Congress power " to raise and support 
armies," with this qualification : ^^hut no appropriation of money to that use 
shall be for a longer term than two years." 

Art. 2, sec. 2, clause 2, gives the President power, with the consent of the 
Senate, to appoint officers of the United States, with this qualification : 
" hut the Congress may, by law, vest the appointment of such inferior offi- 
cers as they think proper, in the President alone, iu the courts of law, or in 
the heads of departments." 

Art. 3, sec. 3, clause 2., gives Congress power to declare the punishment 
of treason, with this qualification : "iw^ no attainder of treason shall work 
corruption of blood, or forfeiture, except during the life of the person 
attainted." 

Art. G, clause 3, requires that Senators and Representatives of the Fede- 

9. 



10 

ral and State Legislatures, and all Executive and Judicial officers, shall be 
bound by oath or affirmation to support the Constitution, with this qualifica- 
tion : '' hut no religious test shall ever be required as a qualification to any 
office or public trust under the United States." 

■ Now, if this clause in question was intended as a qualification of the 
power to regulate commerce, it is a reasonable inquiry why it was not made 
like the qualifications of these other powers, to accompany the grant ? Why, 
for example, does not the grant read — Congress shall have power to regu- 
late commerce with foreign nations, and among the several States, and with 
the Indian tribes ; hut the migration or importation of such persons as any of 
the States now existing shall think proper to admit, shall not be prohibited 
prior to the year 1S08 ; and a tax or duty may be imposed on such impor- 
tation, not exceeding ten dollars for each person ? This would have certainly 
been more in harmony with the arrangement of the other qualifications in the 
Constitution. 

But its history in the Federal Convention indicates that it was not so in- 
tended. The Federal compact resulted mainly from plans submitted by Ed- 
mund Randolph and Charles Pinckney. In neither of which is any mention 
made of the migration or importation of persons. After discussion, the 
plan's were committed to the " Committee of Detail," of which John Rut- 
ledge was elected Chairman. When that Committee reported (August 6th, 
1787), the subject was for the first time brought before the Convention. The 
report, so far as it relates to the powers of Congres, is based upon Mr, 
Pinckney's plan, both in form and expression ; and the attention of Senators 
is invited to the folio win<2; facts : 

In Mr. Pinckney's plan, it is proposed that Congress shall have power ''to 
regulate commerce with all nations, and among the several States." In Mr. 
Rutledge's report, it is provided that Congress shall have power ''to regulate 
commerce y^ith. foreign nations, and among the several States;", presenting 
a change of phraseology. After enumerating twenty additional provisions, 
the last of which relates to direct taxation, Mr. Pinckney's plan continues : 
"No tax shall be paid on articles exported from the States; nor capitation 
tax, but in proportion to the census before directed." The report embodies, 
in eighteen provisions, in similar order and language, with some additions 
and omissions, the twenty provisions of the " plan," and follows the last, re- 
lating to direct taxation, with this : " No tax or duty shall be laid by the 
Legislature on articles exported from any State ; nor on the migration or 
importation of such persons as the several States shall think proper to admit; 
nor shall such migration or importation be prohibited. No capitation tax 
shall be laid, unless in proportion to the census herein before directed to be 
taken." 

From this it appears that, at least at this stage of the proceedings, the 



11 

subject of importintz; negroes (" su^h persons") was acted on in connection 
with the taxing power. For we find it introduced in the report as new mat- 
ter, in a clause of the original plan, relating entirely to taxes ; the grant of 
power in relation to which is separate and distinct from that for the regula- 
tion of commerce. The phraseology of. both these clauses was changed by 
the Committee, and if they intended the insertion of new matter as a quali- 
fication of the one, it is natural to ask why did they insert it in the other ? 
But further : On the 18th of August it was agreed, that Congress should 
have, among other powers, in addition to those already agreed to, authority 
" to regulate afiiiirs with the Indians, as well within as without the limits of 
the United States." This havinjr an obvious connection with trade or com- 
merce with the Indians, was afterwards embodied in the clause for regulating 
commerce, by adding the words — " and with the Indian ti'ibes." If the migra- 
tion and importation of persons had likewise such obvious connection, why 
was. the clause relating to it not also included in this ? 

The clause relating to importea persons and taxes, as reported by the 
Committee, came up for discussion three days after, and a division was made. 
The part relating to a tax on exports was adopted, and the remainder re- 
committed the next day to a Committee, of which Gen. Charles Cotes- 
worth Pinckney was the member from South Carolina. The object of this 
re-commitment will appear from the following remarks of delegates, which, 
whatever view may be taken of them, go nery far to rebut the impression 
that the clause was intended as a qualification of the power to regulate 
commerce ; 

Mr. Luther Martin, of Maryland, proposed to amend the clause as re- 
ported, "so as to allow a prohibitioii or a tax on the importation of slaves." 

" Mr. Rutledge, of South Carolina, did not see how the importation of 
slaves could be encouraged by this section. He was not apprehensive of in- 
surrections, and would readily exempt the other States from the obligation 
to protect the Southern against them. Religion and humanity had nothing 
to do with this question. Interest alone is the governing principle with na- 
tions. The true question at present is, whether the Southern States shall 
or shall not be parties to the Union. If the Northern States consult their 
interest, they will not oppose the increase of slaves, which will increase the 
commodities of which they will become the carriers." 

" Mr. Ellsworth, of Connecticut, was for leaving the clause as it stands. 
Let every State import what it pleases. The morality or wisdom of slavery 
are considerations belonging to the States themselves. What enriches a part 
enriches the whole, and the States are the best judges of their particular 
interest. The old Confederation had not meddled with this point; and he 
did not see any greater necessity for bringing it within the policy of the 
new one." 



12 

" Mr. Charles Pinckney, of South Carolina : South Carolina can never 
receive the j)lan (the Constitution), if it prohibits the Slave Trade. In 
every proposed extension of the powers of Congress, that State has expressly 
and watchfully excepted that of meddling with the importation of ne- 
groes. If the States be all left at .liberty on this subject, South Carolina 
may, perhaps, by degrees, do of herself what is wished, as Virginia and 
Maryland already have done." 

''Mr. Sherman, of Connecticut, was for leaving the clause as it stands. 
He disapproved of the Slave Trade; yet, as the States were now possessed 
of the right to import slaves, as the public good did not require it to be 
taken from them, and as it was expedient to have as few objections as pos- 
sible to the proposed scheme of Government, he thought it best to leave the 
matter as we tind it. He observed that the abolition of slavery seemed to 
be going on in the United States, and that the good sense of the several 
States would, probably, by degrees, complete it." 

" 3Ir. Mason, of Virginia : The present question concerns not the im- 
porting States alone, but the whole Union. The evil of having slaves was 
experienced during the late war. Had slaves been treated as they might 
have been by the enemy, they would have proved dangerous instruments in 
their hands. But their folly dealt by the slaves as it did by the Tories. 
Maryland and Virginia had already prohibited the importation of slaves 
expressly. North Carolina had done the same in substance. All this would 
be vain if South Carolina and Georgia be at liberty to import. The western 
people are already calling out for slaves for their neio lands, and loill fill 
that country with slaves, if they can be got through South Carolina and 
Georgia. Slavery discourages arts and manufactures. The poor despise 
labor when performed by slaves. They prevent the immigration of whites, 
who really enrich and strengthen a country. They produce the most per- 
nicious effect on manners. Eoery master of slaves is born a petty tyrant. 
They bring the judgment of heaven on a country. As nations cannot be re- 
warded or punished in the next world, they must be m this. By an inevi- 
table chain of causes and effects, Providence punishes national sins by 
national calamities. He lamented that some of our eastern brethren had, 
from a lust of gain, embarked in this nefarious traffic. As to the States 
being in possession of the right to import, this was the case with many other 
rights, now to be properly given up. He held it essential, in every point of 
view, that the Ganeril Goof.rnment should have power to prevent the in- 
crease OF slavery." 

" Mr. Ellsworth, of Connecticut, as he had never owned a slave, could not 
judge of the effects of slavery on character. If, however, it was to be con- 
sidered in a moral light, we ought to go further, and free those already in 
the country. As slaves also multiply so fast in Virginia and Maryland, that 



13 

it is cheaper to raise than import them, whilst iu the sickly rice swamps, ' 
foreign supplies are necessary, if we go no further than is urged, we shall be 
unjust towards South Carolina and Georgia. Let us not intermeddle." 

" Ml". Charles Pinckney, of South Carolina : If slavery be wrong, it is 
justified by the example of all the world. He cited the case of Greece, 
Home, and other ancient States ; the sanction given by France, England, 
Holland, and other modern States. In all ages, one half of mankind hitvc 
been slaves." 

'*Gen. Charles Cotesworth Pinckney, of South Carolina, declared it to be 
his firm opinion, that if himself and all his colleagues were to sign the 
Constitution, and use their personal influence, it would be of no avail 
towards obtaining the assent of their constituents, ^outh Carolina and 
Georgia cannoi do without slaves. As to Virfjinia, she will gain hy stopping tlic 
importations. Her slaves will rise in value, and she has more than she wants. 
It would be unequal, unjust, to require South Carolina and Georgia to con- 
federate on such unequal terms. He said the royal assent, before the Kevo- 
lution, had never been refused to South Carolina, as to Virginia. He con- 
tended that the importation of slaves would be for the interest of the whole 
Union. The more slaves, the more produce to employ the carrying trade ; 
the more consumption also ; and the more of this, the more revenue for the 
common treasury. Pie admitted it to be reasonable that slaves should be 
du/ied like other imports ; but would consider a rejection of the clause as an 
exclusion of South Carolina from the Union." 

*'Mr. Baldwin, of Georgia, had conceived national objects alone to be before 
the Convention — not such as, like the present, were of a local nature. Geor- 
gia was decided on this point. That State has always hitherto supposed a 
general government to be the pursuit of the central States, who wished to 
have a vortex for every thing j that her distance would preclude her from 
equal advantage ; and that she could not prudently purchase it by yielding 
national powers. From this it might be understood in what light she would 
view an attempt to abridge one of her favorite prerogatives." 

" Mr. Wilson, of Pennsylvania, observed that as the section now stands, 
all articles imported are to be taxed. Slaves alone are exempt. This is, iu 
fact, a bounty on that article." 

" Mr. Gerry, of Massachusetts, thought we had nothing to do with the 
conduct of the States as to slaves, but ought to be careful not to give any 
sanction to it." 

" Mr. Dickinson, of Delaware, considered it as inadmissible, on every prin- 
ci[>le of honor and safety^ that the importation of slaves should be authorized 
to the States by the constitution. The true question was, whether tlic na- 
tional happiness would be promoted or impeded by the importation ; and this 



14 

* questioa ought to be left to the national government, not to the States par- 
ticularly interested." 

'' Mr. Williamson, of North Caroliaa, thought the Southern States could 
not be members of the Union, if the clause should be rejected ; and that it 
was wrong to force anything down not absolutely necessary, and which any 
State must disagree to." 

" Mr. King, of Massachusetts, remarked on the exemption of slaves from 
duty, whilst every other import teas subjected to if, as an inequality that could 
not fail to strike the commercial sagacity of the Northern and Middle States." 

" Gen. Pinckney, of South Carolina, thought himself bound to declare 
candidly, that he did not think South Carolina would stop her importations 
of slaves in any short time ; but only stop them occasionally, as she now does. 
He moved to commit the c'ause, that slaves anight he made liable to an equal 
tax loith other imports, which he thought right, and which would remove 
one difficulty that had been started." 

" Mr. llutlcdge, of South Carolina, seconded the motion of Gen. Pinckney 
for a commitment," and the clause was accordingly committed, with the view 
of providing for "an equal tax." 

On the 24th of August, the committee reported the clause, amended, and 
on the next day it was changed to its present form. 

The undersigned has been thus lengthy in his extracts from the debate in 
the Convention, because he wishes to avoid conveying an incorrect idea of 
its tone and scope. He now submits to the judgment of the Senate that 
there is nothing in it to warant the opinion that the clause was considered 
with reference to the regulation of commerce, having been committed ex- 
pressly that provision might be made for "an equal tax with other imports." 

The terms of the clause also evince that it was not framed with reference 
to the regulation of commerce. It speaks of "j:)erso3is" whom the States 
then existing may think proper to admit. And, Senators, if we read the 
English language alike, it contemplates the slave in his capacity as a "per- 
son," not in his relation, nor in his condition as property. Its literal mean- 
ing is applicable only to ^^ persons." Now, is the admission of "persons" 
into this or any other State, a commercial transaction? Is the permissicn 
of a "person" to enter and serve an employer (under any condition affecting 
his status) a commercial transaction? The power to decide, select, "think 
proper" who to admit, and who not to admit into a State, is inseparable 
from and indispensable to 'sovereignty. Some States of this Union admit 
"//■ee negroes" as "persons," without being charged as violating the regu- 
lations of commerce; yet they are just "such jjcrsows as the States then ex- 
isting thought proper to ladmit." Now, why not other States admit slave 
negroes with the same impunity? What is there in the Constitution which 



15 

authorizes a sectional choice in selecting these persons ? The power of pro- 
hibiting or admitting the importation (or migration) of "free negro" per- 
sons, 50 called, is not more distinctly an element of the sovereignty of South 
Carolina than the same right respecting the importation of slave negro per- 
sons is. The exercise of the one is an inalienable sovereiu'n riaht, and that 
of the other is neither more nor less. The utatas of no man can be de- 
termined by the laws of the United States, independently of those of any one 
State, but the status of any man can be determined by the laws of any 
sovereign State, independently of those of the United States. Hence it is 
that the status of the imported person cannot affect the meaning of the clause 
in the Constitution referring to them. In fact, the power of prohibiting or 
permitting the importation of slaves, is too substantive to be a mere qualifi- 
cation of another. It is, as it would be respecting other persons, probably 
the most inviolable right of States, and can never, by mere implication, be 
degraded to a "commercial regulation." To illustrate this, a single question 
will suffice : Is there any other race or condition of men but the African 
slave, whose migration or importation Congress would prohibit as a regula- 
tion of commerce ? 

The Committee who reported the clause the second time was composed of 
eleven members,* of whom, so far as the undersigned has been able to 
inform himself, Mr. Madison is the only one who distinctly includes the 
power to prohibit the slave trade in the power to regulate commerce. 

Mr. Martin, of Maryland, in his letter to the Legislature of his State, after 
mentioning the diversity of sentiment on the subject, observes : — "you will 
perceivej not only that the General Grovernment is prohibited from interfer- 
ing in the slave trade before the year 1808, but there is no provision in the 
Constitution that it shall afterwards be prohibited, nor any security that such 
prohibition will ever take place." 

Gen. Pinckuey, another member of the Committee, observed in a speech 
in the Legislature of this State, in reply to Rawlins Lowndes, that " on 
this point your delegates had to contend with the religious anil political 
prejudices of the Eastern and Middled States, and with the interested and 
inconsistent opinion, of Virginia, who was warmly opposed to our importing 
more slaves. I am of the same opinion now as I was two years ago, ' while 
there remains one acre of swamp land, uncleared, of South Carolina, Iicdl 
raise my voice against restricting the importation of negroes.' I am as 
thoroughly convinced as that gentleman is, that the nature of our climate, 
and the flat, swampy situation of our country, obliges us to cultivate our 

* Messrs. Langdon of New Hampshire, King of Massachusetts, Johnson of Connecticut, 
Livingston of New Jersey, Clymer of Pennsylvania, Dickinson of Delaware, Martin cf 
Maryland, Madison of Virginia, Williamson of North Carolina, C. C. Pinckney of South 
Carolina, and Baldwin of Georgia. 



16 

lands with negroes, and that, without them. South Carolina would be a de- 
serted waste. * * * ]3y this settlement we have secured an unlimited 
importation of negroes for twenty years, nor is it declared that the imj'jorta- 
tion shall be then stopped; it maybe continued." 

Mr. Madison said, in the Virginia Convention, that this clause ''was a 
restraint on the exercise of a power expressly delegated to Congress, namely, 
that of regulating commerce with foreign nations; " and, in the ''Feder- 
alist," he speaks of a power "to regulate commerce, including a power to 
prohibit, after the year 1808, the importation of slaves, and to lay an inter- 
mediate duty of ^10 per head, as a discouragement to such imjjortations." 

Thus, while Mr. Madison is definite, the other members of the committee 
are either silent on the subject, or else indefinite as to where the power to 
prohibit the trade was supposed to lie. His evidence, therefore, must 
be well weighed, for it is of too much importance to be lightly received. 
He must have regarded the slave as a subject for commercial regulation, 
either iu the capacity of a person, or as mercantile and dutiable property. 
If the former, it has already been shown that the power to regulate com- 
merue no more includes the power to prohibit the ingress of negro slaves, 
than it includes the power to prohibit the ingress of free Chinese, Europeans, 
or any other race, class or condition of men ; for, in each case, the s,ubject 
prohibited is a person, and is prohibited only as sucli: or, if he refers to the 
slave as projterty, he contradicts himself, besides being contradicted by other 
delegates, and his evidence is, at least, not conclusive. 

He is, for example, palpably wrong when he says in the Federalist, No. 
42, that the maximum tax of ten dollars on imported slaves was allowed "«s 
a discouragement to such importation." It has already been shown that 
Gen. Pinckney, seconded by Mr. Rutledge, moved for the re-commitment of 
the clause '' that slaves might he viadeliahle to an equal tax loith other im- 
ports." Wlien the Committee reported their substitute, they provided for 
this "equal tax" in these words : " but a tax or duty may be imposed on 
such migration or importation, at a rate not exceeding the average of the 
duties laid on imports." This was changed, on motion of Mr. Baldwin, of 
Georgia, by striking out the last seven words, and inserting " common im- 
posts on articles not enumerated " and, finally, it was made to read " not 
exeeeding ten dollars for each person." Without referring to the short de- 
bate which took place pending these amendments, in which Mr. Sherman, of 
Connecticut, held " that the smallness of the duty showed revenue to be the 
object, not the discouragement of the importation," and, without citing the 
truth, that Gen. Pinckney's and Mr. Rutledge's reason for moving a com- 
mitment, Mr. Baldwin's amendment, and Mr. Sherman's observation, have 
the weight of four to one against Mr. Madison's version of the intention of 
delegates, the undersigned respectfully submits the fact on its own merits, 



17 

that this tax can not be regarded as any further discouragement of the im- 
portation of slaves, than a like tax on other imports is to be regarded as 
a discouragement of the importation of other property. ^-1 tax u-hich dues 
«o< exccrf? the '' average of the duties laid on imports," or the ''common 
impost on articles not enumerated," or ten dollars on slaves who sell for 
three or four hundred, cannot have been intended hy the convention as a dis- 
cottragement io the slave trade. Mr. Madison, doubtless, had that 
motive himself, but he was evidently mistaken when he attributed it to 
the whole convention. And, if he can have been so utterly wrong in this 
particular, it is not impossible that he was wrong in the other part of the 
sentence which has been quoted from the Federalist. 

In the second place, if he :efers to slaves as property, there is very 
grave inconsistency in his opinions. On the 25th of August, 1787, he 
thought it wrong to admit ''in the Constitution, the idea that there could 
be property in men." But on the 9th of July, he suggested that, in the 
House of Representatives, the States should be represented according to 
their whole number of inhabitants, " including slaves," because that House 
"had, for one of its primary objects, the guardianship oi projiertr/." And 
he approved of a duty on imported negroes, thereby acknowledging them to 
be property, for this is not a capitation tax. The undersigned, therefore, 
fails to perceive any claim to contidence in the doctrine, which shirks the 
idea, but embraces the thing — which will not admit the " idea" of slavery 
in the Constitution, but readily taxes the slave as property, and gives him 
a rejrresentatiun, as property, in Congress ; and hence cannot receive, as 
unquestionable authority, what is so intermixed with error and contradiction. 

The Constitution, as finally adopted, provides that Congress shall have 
power " to regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes." The question is, does this necessarily 
imply a power io 2ii'ohib it, forever, the importation of African slaves ? And 
the answer turns on the meaning of the expression, " regulate commerce." 

Mr. Charles Pinckney is the author of the expression. It was first used 
in the convention in the plan submitted by him, and copied into the " plan" 
which he said, as already cited, could not be received by South Carolina if 
it authorized the prohibition of the slave trade. It is clear, then, that he did 
not consider the power to prohibit the trade as included in the power to 
regulate commerce. And if he, the person who first introduced the expres- 
sion, did not so view its meaning, it is no undue presumption for others to 
do likewise. 

As early as February 3d, 1781, it was declared in Congress, though not 
formally adopted as a resolution, "that it is indispensably necessary that 
the United States in Congress assembled should be vested with a right of 
3 



18 ' 

superintending the commercial regulations of every State, that none may 
take place that shall be iKirtial or contrary to the common interest." 

In 1785, in a report submitted to the Virginia Legislature, it was declared, 
that "the relative situation of the United States has been found, on trial, 
to require uniformitt/ in their commercial regulations," and that "such uni- 
formity can be best concerted and carried into effect by the Federal Coun- 
cils." 

In 1786, the same legislature appointed commissioners to meet commis- 
sioners from other States, " to examine the relative situation and trade of 
the said States," and "to consider how far a uniform system in their com- 
mercial regulations may be uecessar}' to their common interest and their 
permanent harmony." And severS,l other States did likewise. 

In compliance with the recommendation of these commissioners, the 
Federal Convention met in 1787, for the purpose specified. And the first 
additional power proposed for Congret^s was, " to legislate in all cases to 
which the separate States are incompetent, or in which the haimony of the 
United States may be interrupted by the exercise of individual legislation," 
which was agreed to by the convention in committee of the whole. 

These evidences of the previous intention of the parties to the compact, 
leave no doubt that the leading object was a uniform system of laws for the 
regulation of the commerce of each State, and since the separate States were 
incompetent to secure such uniformity, inasmuch as no one State could pass 
laws regulating the commerce of another, it was necessary that Congress 
should be authorized to enact such laws. In other words, what was meant 
by Congress regulatiny commerce was, that it should prescribe a uniform 
system of laws for its promotion and security. 

But it was objected by Messrs. Butler and Rutledge, of South Carolina, 
that " the vagueness of the term (incompetent) rendered it impossible for 
any precise judgment to be formed," and they urged that there should be 
"a specification of the powers comprised" in the proposition. Accordingly, 
when the committee of detail reported, the powers of Congress were all 
specified, in nearly the same language as that used by Mr. Pinckney in his 
plan, prominent among which was the expression "to regulate commerce.^' 
With this insight into the general object in view at the time of the sitting 
of the Convention, and with this knowledge of the authorship of tlie expres- 
sion, it will not be difficult to understand its meaning. 

In general terms, the regulation of commerce is admitted to include rules 
for navigation, the construction and establishment of buoys, roadsteads, 
lighthouses, and other commercial facilities ; the decision of the proportion 
of passengers to tonnage, and a variety of other things necessarily implied in 
enforcing the general power and in attaining the general object. But in 



19 

every instance the act is prescriptive, or declaratory of what is deemed the 
best means oi 2^^'omoting the commercial interests of the country. The regu- 
latioH of commerce must be admitted to extend to every species of traffic, 
to every sort of transportation, and to every class of agents employed. But 
what is the motive, the great ulterior ohject of these regulations ? Cerrainly 
it must be the preservation, the encouragement and security of every branch 
of trade and transportation, and of every agency. Chief Justice Marshall 
sums it up in a sentence. Commerce, he says, "describes the commercial 
intercourse between nations and parts of nations, In all its branches, and is 
regulated hy prescribinj rules for carrying on that intercourse." With this 
understanding of what is comprehended among the snljects of commercial 
regulation, and what is the general ohject of such regulation, the undersigned 
assumes that the expression has the same meaning in its three several appli- 
cations in the Constitution, with such manifest limitations as will now be 
mentioned. 

Congress has put a correct interpretation on its general power to 
regulate commerce with the Indian tribes. Under the old Confederation, 
in 1786, an ordinance was passed for the regulation of the Indian trade, by 
which a system of licenses were granted to American citizens of good repute 
to prosecute the traffic. Again in 1790, '96, 1802, '16, and at other times, 
additional regulations were adopted, the distinguishing feature in which was 
a tendency to keep the trade in the hands of American citizens. The rea- 
son is obvious. The Indians are ignorant and warlike savages, independent 
tribes living within our national jurisdiction, and if allowed free intercourse 
with such foreign or other persons as may be evil disposed, the consequences 
might be hurtful to the peace and tranquility of the country. The regula- 
tions are, as they should be, peculiar to the circumstances of the people, 
but designed to encourage aud promote, not to prohibit, a peaceful inter- 
course. Mr. Calhoun, in one of his reports from the War Department, 
observes that the Indian trade "was commenced, and has been continued 
from motives both of prudence and humanity." Aud all the rules for its 
regulation were designed for its '' successful and safe prosecution," not its 
prohibition. 

Congress has also enacted laws for "carrying on" commerce among the 
States, for its "successful and safe prosecution," but not for its prohibition 
or destruction. It regulates the slave trade among the States. One Act, 
for example, requires vessels transiorting slaves coastwise, to be of at least 
forty tons burthen; and all the requisite papers have to be signed by the 
proper officer of the customs. This and other Acts comprise that uniform 
system of regulations for continuing, preserving and "carrying on" com- 
merce, " in all its branches," among the States, which it was intended Con- 
gress should establish. 



20 

The authority of Congress, however, over the commerce between the 
States, though just as supreme in its nature as that over commerce with 
foreign nations, requires a few words of explanation in order to be properly 
understood. The expression ''among the several States" is a restriction of 
the jurisdiction of Congress to the external intercourse between the States. 
This jurisdiction extends, for example, to the navigation between the ports 
of the different States, provided it is conducted on the high seas, or large 
lakes and rivers connecting more than two States, but not if it is carried 
on overland. And this inland trade is a necessary and unavoidable 
exception. In the one case, the channel of trade, the line of transit, 
the route or highway, is beyond the jurisdiction of either of the States 
concerned, and of necessity is under the joint jurisdiction of all the 
States, vested in the Federal Grovernment, in the form of an exclusive admi- 
ralty jurisdiction; while in the other case, trade is carried on under the 
exclusive jurisdiction of the State within whose limits " the subject, the 
vehicle, the agent and their various operations" happen to be. The moment 
they cross the boundary line of two States, they pass from the jurisdiction 
of one to that of the other, and Congress can by no possibility regulate the 
intercourse, though the Federal Courts may have cognisance of certain cases 
arising out of it. But with this necessary restriction of its jurisdiction, 
growing out of the compound nature of our government, the power of Con- 
gress to regulate commerce among the States, and with foreign nations, is 
precisely the same, embracing every description of property, '' subject, 
vehicle and agent." Of course, the slave trade, which is an important branch 
of commerce among the Southern States, must be included. 

It is true, some distinction has been sought to be made between domestic 
and foreign commerce in the item of slaves. Among other instances, it was 
held, in the ease of the United States vs. Bates and others, (Columbia, De- 
cember, 1858,) respecting the domestic trade. " All that can be done by 
Congress in such a matter is, that it may regulate the transportation, as it 
has been done, to a certain extent ; Congress may regulate it as to the man- 
ner in which 'it may he done^ so as to preverit the conveyance by sea from 
becoming a facility for the escape of fugitive slaves ; to proportion the num- 
ber to be sent to tonnage, to insure a safe and humane transportation, and 
in other particulars of a like kind ; and to prevent the transportation from 
being made a cover for the introduction (^smuggling) of slaves from foreign 
places to the United States, and, above all, to secure to the slave owner the 
transportation of his slaves by sea, and his right of property in them from 
any interference whatever by the cruisers or ships of foreign nations." 
This the undersigned contends is in substance likewise, " all that can be 
done by Congress" in the matter of the slave trade with foreign nations. 
Congress may forbid the smuggling, but not the importation of slaves, and 



21 

" regulate it as to the manner, in wliicli it may be done." The regulation 
of commerce is the exercise of a general power, and is intended for general 
purposes — it is designed for the common good and equal benefit of the States. 
But slave property is not common to all the States — it bears the same rela- 
tion to commerce in general as the produce of any section does. And no 
reason has yet been assigned why the traflic in it can be j)ro7iilite(f with any 
more propriety, as a commercial regulation, than the traffic in rice, sugar, 
tobacco, or any other property peculiar to any one State or section of the 
Union, can be so prohibited. Nor can the prohibition of one be any more 
general or less special than that of the others. If it is admitted that Con- 
gress cannot prohibit the introduction of slaves from Virginia into Texas as 
a commercial regulation, because Texas allows slavery, and Virginia allows 
slavery, the same reason holds if the slaves come from anywhere else where 
slavery exists. If the right of a State to permit her citizens to own slaves, 
disarms Congress of power to prohibit their introduction from any other 
State, under the general power to regulate commerce among the States, it 
must, in the absence of any special constitutional provision, also disarm 
Congress of the same power respecting slaves from foreign slave coun- 
tries. The right to prohibit and to permit shtverjj are co-relative, co- 
existent and inseparable, and it is admitted that the right to abolish 
slavery within its own limits, which every State in the Union possesses, 
" carries with it the right to forbid within its limits the importation 
or introduction of slaves, for the purpose of sale, traffic or use." Thus the 
right to forbid the introduction of slaves is only a modification of the right 
to prohibit slavery, or the holding of slaves, and in the case of a new State 
its exercise would be tantamount to such prohibition. So, too, the right to 
admit the introduction of slaves is a modification of the right to permit 
slavery, or the holding of slaves, and in the case of a new State, its exer- 
cise is tantamount to such permission. And the right to prohibit and to 
permit the introduction of slaves are also co-relative, co-existent and insepar- 
able. It follows that since the right to permit the introduction of slaves rests 
solely with the States respectively, the right to forbid their introduction 
rests solely with them likewise, and can no more be imjolicd in any power 
granted to Congress than the right to forbid slavery, each right of prohibition 
being co-relative, co-existent and inseparable from the corresponding right of 
permission. 

The truth is, slavery, with all its adjuncts, is a local and a State interest, 
and for Congress to jirohibit either, is to legislate for local and special pur- 
poses. It may regulate the traffic, and must protect the property from foreign 
assault, but it cannot abolish either without usurping the right of the several 
States. The Federal Government was established for general purposes only ; 
purposes to effect which the several States were " incompetent," and for the 



22 



preservation and upon the basis of strict equaUtij among the States as sove- 
reigns. In commercial intercourse with each other, and with foreign nations, 
equality of rights and uniformity of practices were the aim of the parties to 
the federal compact. For example : 

It forbids that a " preference shall be given, by any regulation of com- 
merce or revenue, to the ports of one State over those of another; nor shall 
vessels bound to or from one State, be obliged to enter, clear or pay duties in 
another." Thus, whatever is the subject of regulation, whatever the nature 
of the property imported or exported to or from one State, whether of 
domestic or foreign origin, it must, so far as Congress can control^ it, be 
allowed to be imported or exported to or from any other State. This puts 
the several States on a footing of perfect commercial equality, so far as any 
lawful action of the Federal Government is concerned. 

It also forbi'^s that any State " shall enter into any treaty, alliance or con- 
federation," or "without the consent of Congress, lay any duty of tonnage, 
or enter into any agreement or compact with another State, or with a foreign 
power," and thereby puts the several States on a footing of perfect commer- 
cial equality, so far as any lawful action of a State Government is concerned. 
And, to complete the arrangement, it is provided that '' the citizens of 
each State shalf be entitled to all the privileges and immunities of citizens 
of the several States." This secures to citizens of each State, the privilege 
of trading and bartering, in any State, such goods, commodities, or other 
property, as shall not be prohibited by the municipal laws of the State in 
which the traffic is proposed to be conducted; and renders effective the 
principle of equality and uniformity, both as it affects the subjects, the 
vehicles and the agents of commerce, which was the paramount purpose 
for which the Federal Government was erected. 

Itwillnot, then, be denied,that, so far as federal laiDexten(h,vfh^iQ'^^r pro- 
perty can be lawfully bought and sold, in commerce with foreign nations, must 
be a lawful subject of trade among the States. The provisions just cited render 
this unquestionable. But, is not the converse of this true also ? Is not that 
property, which can be lawfully bought and sold, in the commerce among 
the States, and the prolilUtion of which is confessedly excluded from the 
power to regulate that commerce, likewise a lawful subject of commerce with 
forei-n nations ? And is not its prohibition, also, excluded from the power 
to re-ulate<Aa< commerce? The undersigned believes it is, and that the 
Constitution regards the property entering into the commerce among the 
States, whatever its nature, as a legitimate subject of commerce with foreign 
nations-if recognized by their municipal laws. That any description of pro- 
perty, which may be exported or imported to or from foreign nations, or imported 
from one State to another, may also be exported or imported to or from foreign 
nations. No exception is either expressed or necessarily implied in the Consti- 



23 



thaYnstrutueut Exccptx.g, then, only such property as may be prohibited 
by the luunicipal laws of any State or foreign nation, by virtue of its xdu 
sive sovereign right, the commerce with foreign nations, and a.ong thJ 
States, embrace the same subjects. It remains to enquire, whether thty are 
not to be regulated with the same object. ^ 

Having seen that to - regulate commerce" with the Indian tribes and 

of U, and not for prohibiting any~for securing its '< successful and safe 
prosecution," and not for its annihilation, we have a right to assume, that 
the same words, in the same sentence, and in the same connection, when 
applied to foreign nations, means the same thing. And for this assumption, 
the grounds are ample. ^ ' 

Cases may, perhaps, arise in which the regulation of foreign commerce 
involves a power to prohibit, for a limited time, some branch'of it, for the 
general interests of commerce ; but if any, they are rare, and the prohibition 
must be for a hmited time, and j^urel^ for commercud jnu-poses~fov the 
advancement of commerce in general, an<l for no other purpose. But the 
acts prohibiting the slave trade are not limited as to time-they prohibit 

forever- and they were not passed for commercial purpo.es, but throu-h 
motives ot wnat was regarded humanity, philanthropy, morality or anythim- 

but those of a commercial na-^ure ; hence they are not aa.ong these excep! 

tional cases. ^ 

Besides if by virtue of its general authority Congress can prohibit any 
one branch of commerce, why may it not prohibit another? Or if it cau 
destroy it with foreign nations, why may it not, by virtue of the same 
authority,_ conjointly granted in the same clause, destroy it among the States? 
^V hat limit^ IS set upon its discretion ? What restricts its prohibitory power 
to any particular traffic ? Is not the power to regulate general ? Is it not 
the same as regards every branch of trade? Are not foreign and inter-State 
commerce equally subject to the regulations of Congress ? It is urged that, 
but for the restriction in the Constitution relative to the importation of 
i>e..o«.s. Congress could, immediately upon its adoption, have prohibited the 
importation of slaves. Now, if this is true, it n.ust be true of any other per- 
sons or property, respecting which there is no such restiiction, for the decla- 
ration that a certain act shall not be done prior to the year 1808, is not a 
declaration that it could otherwise have been done, nor that it can be done 
atter that time. ]t leaves the question open, as will be presently shown, and 
therefore, as already shown, the clause respecting the importation of persons 
IS no grant of power. The prohibitory power of Congress must be general 
and the same respecting all property, and both foreign and inter-State com- 
merce. If there is power to destroy in one case, there is in all others, and 



24 

if Congress, uuder the plea of regulating commerce, can prohibit the slave 
trade with foreiga nations, the undersigned has not yet seen a reason 
assigned why it cannot do the same under the same plea, among the States, 
and with respect to other property. 

Another ground for the assumption that the word " regulate" means the 
same thing as applied either to foreiga or inter-State commerce, and does not 
mean prohibit in any case is, that it is used in other parts of the Constitu- 
tion, and can in no instance, by any possibility, involve the idea of 
destruction or permanent prohibition. Congress has power to " coin money, 
regulate the value thereof, and of foreign coin, and fix the standard of 
weights and measures," yet no one will contend that it thereby derives power 
to destroy "the value thereof," or to proMhitxhQ importation of foreign coin. 
It also can " make rules for the government and regulation of the land and 
naval forces,' ' but this does not involve power to destroij the forces. How can 
that be regulated which is prohibited or destroyed? Congress, undoubtedly, 
may disband the forces, but the power to do so is incident to its power " to 
raise and support armies," and "to provide and maintain a navy." The 
power to regulate obviously exists only when the forces are raised. Kegula- 
tion implies the existence, not the destruction of the thing regulated. 

It is also provided that " the times, places and manner of holding elections 
for Senators and Representatives, shall be prescribed in each State by the 
Legislature thereof; but the Congress may, at any time, by law, make or 
alter such regulalions, except as to the places of choosing Senators." This 
use of the word is conclusive of its meaning; and as in these, and other 
instances, it cannot mean destruction or permanent prohibition, it is yet to 
be shown why its meaning should be different in the only remaining instance 
of its use in the Constitution. It is used, for example, in the fourth and 
eighth sections of the first article, and applies to twelve different subjects of 
legislation. With regard to eleven of these, viz : the time, the place, the 
mtnner of electing Representatives; the time, the manner of choosing Sena- 
tors, the army; the navy, domestic coin, foreign coin, commerce with the 
Indian tribes, and commerce among the States— it is certain it does not 
include the power to destroy or permanently prohibit; and the undersigned 
is aware of no reason why this power should be included in the twelfth, viz : 
the regulation of foreign commerce. 

The authority of great names, too, may be cited on this point. In the 
case of Groves & Slaughter, Mr. Clay argued, as -the undersigned already 
has, that the authority over commerce was granted to Congress solely for 
the' purpose of making "uniform and equal regulations" for the preserva- 
tion, and not destruction of commerce. He said, in substance, that the 
object was "to regulate commerce; to sustain it, not to annihilate it. It is 
conservative. Regulation implies continued existence— Me, not death; pre- 



25 



en-ahoo not annihilation; the unobstructed flow of the strean., not to 
check and dry up at. water.." "The right of the States to re^uLte the 
conditionof3la.es within their bordei. is not denied. Every S^e Jav 
by It. laws, fix the character and condition of slaves. The right of Con^^^ 
t regulate co.nierce between the States, ...VA .a, e.ten} to tU r.^Z 
Uon of the transportation of slares from one State to another, a. naerchan- 
dise, does not affect these rights of the States. 

oZ'Tl^tT' ^'"^^""T^ ''"^'^^ =*^S""^^°^ in the same ease, and in the 
ca.e Gibbon & Ogden he said that the prevailing motive in Ldoptin. the 
ton.,tUutiun was to place commerce '' under the protection of a «„.>L^... 
The topic urged on all occasions was the state of trade and commerce 
lote«^^ and m^rore these, was a great object in itself. * * ^ Confess 

subject And, in one of his speeches in the Hoa.e of Representatives 
during the thirteenth Congress, he ably contended that, in the sense of tS 

That though Congress had the power to regulate, it could not ahoU^ trade '' 
These views were recited to him in the Senate in 1850, and he did not repu- 
diate them, after the lapse of a quarter of a century. 

Mr. Jefferson, in hb report on commerce and navigation, in 1703 speaks 
of the -rey«/«/,o«., duties and prohihitionsr of fordgn nations, evidently 
using the terms as meaning different things. 

But Mr. Calhoun has suggested the best and, perhaps, the only te.t by 
which the meaning cf the expression, in the constitutional sense, can be 
determined. In his report to the Senate on the Memphis memorial he 
rea.sons thus : - What power would a fair interpretation of the terms 're^ni- 
late commerce' confer on Congress? Or, to express it more fully, wL. 
IK)wer did the framers of the Constitution intend to delegate to it in u^in^ 
these terms? * * * There are few words in the lan^aee, when thn^ 
■ »^ed, more vague than the verb to regulate. It has, as comm^onlv used, all 
the shades of meaning, from the mere power of prescribing rules' to that of 
having unlimited control over the subject to which it is applied. Xor is the 
term commerce free from ambiguity when so used. It sometimes means 
trade simply ■ and, at others, trade and transit, or navigation when the 
transit is by water. But the case is different when they a^e applied to con- 
stituti^al or legal subjects. When so applied, their meaning is so much 
more precise that they may be regarded as almost technical. They occupy a 
large space in our own code of laws, and that of the countrv from which we 
derive our origin and language. And what contributes still more to the 
precision of their meaning is, that they occupied a prominent place in the 
discussion which preceded and led to the revolution that separated the two 
countries. * * * Many of the frauiers of the Constitution were able 
4 



26 

statesmen and learned lawyers, took an active part in the discussion, and 
were familiar with the meaning of the terms, as poltticalli/ and legally ap- 
plied at the time. Under such circumstances, it is a fair presumption that 
in using them in delegating the power, they Intended to attach a mean- 
ing to them similar to that in tchich they had hecn in tltc ludjit of cmjjloying 
them in their political discussions, and in which the States had been accus- 
tomed to use them in legislating on the sxdrject of regulating commerce prior to, 
and subsequent to, the revolution." 

" Assuti.ing such to be the case, your Committee are brought to the ques- 
tion : What powers were the States accustomed to exercise in rcgidating 
their commerce before and at the time of the adoption of the Constitution, 
as far as they relate to its safety and facility ? The answer will solve the 
question as to the true meaning of the terms, and the kind of powers 
intended to be delegated to Congress in reference to them." 

Adopting this reasonable test, the undersigned will proceed to show 
whether the States of this Union, prior to the adoption of the Constitution, 
or Great Britain at anytime, prohibited the importation of slaves "m 
regidating their commerce ;" or whether it has not, in every such case, 
been done as an act of sovereignty, in right of wiiich, all States may allow 
or prohibit the migration or importation of any class, race or condition of 
men. 

Virginia forbade importation soon after her independence, but not as a 
regulation of commerce. Mr. Jefferson says, in his " notes: " "In the very 
first session held under the Republican Government, the Assembly passed a 
\ayi ioY i\\e perpetual prohibition 0? the importation of slaves." lie gives 
the motive ; it was to prevent as much as possible the increase of slavery, 
not in any way to affect commerce. And he predicts the effect : — " This 
will, in some measure, stop the increase of this great political and moral 
evil, while the minds of our citizens may be ripening for a complete eman- 
cipation of human nature." Here are the act, the motive, and the desired 
effect, neither of which involves the thought of regulating commerce. 
Again, in 1792, Virginia forbade the ingress of slaves from any of the 
United States, which certainly was not a regulation of commerce. 

It is not ten years since Senator Mason, of thut State, had occasion to 
substantiate this. He said, in the debate on the slave trade in the District 
of Columbia, that " it was, at one time, the policy of Virginia to prohibit the 
increase of the slave population within her territory. It was a policy which 
was adopted in the spirit which Virginia then entertnined, of preventing, as 
far as practicable, the increase of that population. That policy she has since 
been obliged to change. Virginia, I think, was among the earliest States, 
after the present Constitution was formed, which, in advance of the law of 
the United States prohibiting the importation of slaves from abroad, pro- 



27 



hibitcd the importation withiu its liuiits, of slaves of that description. In 
1792 was passed an Act declaring that ' slaves whicfi shall hereafter be 
brought into this Comuionwealth, and kept therein one whole year together, 
or so long, at diflferent times, as shall amount to one year, shall be free. * 
* * The policy of this law was, /m no manner icliatever^ to effect com- 
merce in slaves. It had no such desujn, no such ^^t^'^pose.. It left slaves to 
stand exactly where they had previously stood, subject precisely to the same 
commerce that other property is subject to." 

It is thus apparent that Virginia did not prohibit this importation as a 
regulation of commerce, but in the exercise of a higher prerogative, and a 
dearer right — that of determining who shall be allowed residence and protec- 
tion within her limits. This is an inalienable right of sovereignty, having 
no connection or similitude whatever with commercial affairs, and it is impos- 
sible that so high, substantive and essential a power, can have been delegated 
to Congress, by mere implication, in a clause on a totally foreign subject. 

Other States did the same as Virginia. South Carolina passed a similar 
Act, the same year, (1792). The reason is set forth in a preamble — " Where- 
as, it is deemed inexpedient to increase the number of slaves within the 
State, in our present circumstances and condition." Not a word is said 
about commerce or trade. In 1787, before the adoption of the Federal 
Constitution, the importation was stopped, for a similar reason. Other prohibi- 
tory acts were passed in 1794, 1796, 1798, 180U, 1801 and 1816, none of 
which were ever claimed as commercial re2;ulations. 

Maryland did likewise, and for like reasons, in 1796. Massachusetts, 
during the old confederation, abolished not only the slave trade, but slavery, 
also. The ordinance of 1787 followed. New England and the Middle 
States followed the example, all aiming at the abolition of slavery, and none 
at the reyulation of commerce. This is incontrovertible. 

And how was it with Great Britain, the country to which Mr. Calhoun 
refers, as the one " from which we derive our origin and lanijuage?" Did 

' COO 

Parliament abolish the slave trade as a ref^ulation of commerce ? It is 
hardly necessary to answer in the negative. This was the very point at 
issue when the matter was first discussed, during tlie session of 1787-8 ; 
vwjht the trade to he reyulated, or ought it to be abolished? 

Mr. Pitt, in opening tjie debate, said, " two opinions had prevailed with- 
out doors, as appeared from the language of the diflFereut petitions. It had 
been generally thought, that the African slave trade ought to be abolished. 
There were others who thought it only stood in need of rei/ulatious." His 
object was to enable Parliament to determine " whether the whole of the 
trade ought to be abolished; and, if so, how and when. But, if it should 
be thought that the trade should only be put under certain regulations, what 
those regulations ought to be, and when they should take place." 



28 

Mr. Fox, in the same debate said that, "as for himself, he had no 
scruples to declare at the outset, that the slave trade oiiylit not to he regulated, 
but destroyed." 

Mr. Burke said, " he thought it ought to be abolished, on principles of 
humanity and justice. If, however, opposition of interests should render its 
total abolition impossible, it oughi to be regulated, and that immediately." 

Mr. Gascoyne, a member for Liverpool, representing a constituency largely 
engaged in the trade, thought its aholUlon impracticable, but he wished 
to see some regrdatloiis adopted. 

Sir William Dobbin ''did not wish to enter into the discussion of the 
general question of the abolition of the slave trade." He wished merely 
to propose " some regidations" which, he thought, ''should be adopted." 
And, finally, a bill for the regulatimi of the slave trade w: s passed, and the 
importation continued twenty years — the term " regulate" being notoriously 
used throughout the debate in contradistinction to the term " abolish," or 
" prohibit." 

At a subsequent session, Mr. Wilberforce declared himself, repeatedly, in 
the most positive terms, opposed to every regulation, and to any action 
whatever short of " a total abolition of the trade." So far from viewing 
the measure as a regulation of commerce, one of his chief arguments was, 
that it would not aifect commerce generally. He had the candor to avow his 
object openly ; he said, " I will gradually produce the abolition of slavery, by 
immediately abolishing the .s/f/i;e <rar('fi; and I will never cease from prose- 
cuting my plan till the object shall be accomplished." 

Three of the leading Aldermen of London, members of the House of 
Commons, believed that " tliis trade might, undoubtedly, be put under whole- 
some regulations, and be made productive of great commercial advantages^" 
but they could never consent to its abolition. 

Lord liussell was " against the abolition-/' but said "whenever a bill 
of wise regulation should be brought forward, no man would be more ready 
than hinjself to lend his support." 

It was even contended that the trade was not a branch of commerce, 
and, of course, could not be regulated as such. Mr. Addiugton, Speaker 
of the House of Commons, " wished to see the slave trade abolished. In 
deed, it did not deserve the name of trade. It was not a trade, and ought 
not to be allowed." ' 

Mr. Fox said, "with regard to the regulation of the slave trade, he knew 
of no such thing as a regulation of robbery and murder." 

Mr Thornton said, " it was war, and not trade. It was a mass of crimes, 
and not eommerce." 

These are fair specimens of the tone of the discussion in Parliament ; and 
it is impossible to deny that the terms "regulate," and " abolish/' or 



29 

*' prohibit," were used in contradistinction throughout ; or to affirm tliat 
cither party viewed the prohibition of the slave trade as a regulation of com- 
merce. Judging, then, the uicaning of the expression, as used in the 
Constitution, by the test laid down by Mr. Calhoun, (i e.) by the current 
2)oliti(<d and legal understmuJivg of it, in, the several jStates and in Great 
Jin'fain, at the time, it seems plain that it docs not include the power to 
prohibit or abolish. 

But what; after all, was the avowed object of Congress itself in prohibiting 
the trade. Was it to regulate commerce? The whole discussion in that 
body from first to last, breathes the s.^ntinient of abolition, not regulation. 
The fiist abolition petition ever presented. was aimed at the slave trade (Feb., 
1790.) Mr. Franklin, the President of the Pennsylvania Quaker Abolition 
iSociety, prayed Congress that it would "promote mercy and justice towards 
this distressed race, and that it would step to the very verge of the power 
vested in it for discouraging every species of traffic in the persons of our fel- 
low men." The memorial arose "from the persuasion that equal liberty was 
originally the portion, and is still the birthright of all men," and it referred, 
for authority, not to the power to regulate commerce, but to the "important 
and salutary powers" for " promoting the welfare, and securing the bles.sings 
of liberty to the people of the United States." The object, as avowed by 
the friends of the memorial, was "to abate the horrors of slavery," uot to regu- 
late trade. 

Again, in 1800, even the vagabond negroes of Philadelphia undertook to 
petition Congress, and enlighten that body respecting the " digniLyjd nature 
of man." They thought humanity, not commerce, required a repeal of 
the fugitive slave law, and a stop to the African slave trade. And the Act 
of that year was passed because it was thought " it would be extremely 
dishonorable in a country like this, to affirm such a trade, so couti'ary to all 
those principles held dear in the United States," and not because it was 
essential to the commercial interests of the country, or a proper regulation 
of trade. Mr. John Eutledge, a member from this State, gives the correct 
version of the whole object of legislation on this subject. In the course of 
debate, he observed, " the different States which had heretofore imported 
those people, had established the policy not to import anymore ; but, in addi- 
tion to this willing restriction, the Federal Government thought proper to 
prevent the trade being carried on by our ships to those countries which 
did suffer their importation. This was goiu_^ very far, indeed ; but so far it 
■ was thought proper to go, to furnish a peace offering to those jihilanthrojrists 
ichose urgency teas great to accomjiUsh the general destruction of the trade." 

The next agitation of the subject was in 1804. South Carolina, in the 
exercise of her inalienable sovereign riglit, had repealed her Acts prohibit- 
ing the importation of Africans ; and the Louisiana Territory had been 



30 

acquired. The latter occasioned the c;ros3 usurpation embodied in the 10th 
section of the Act erecting Louisiana into two territories, which Congress 
was obliged afterwards to repeal. But the Legislation of tliis State incurred 
for her the indignation of Congress Mr. Bard, a Representative from 
Pennsylvania, proposed "that a tax of ten dollars be imposed on every slave 
imported into any part of the United States," and assigned his reasons. 
He said, " the tax will have two effects — it will add something to the reve- 
nue, and it ivi/l shoio to the world thai the General Government are ojyposecl to 
SLAVERY, and ivtlling to ivipi-ove their power, as far as it will go, for pre- 
venting it. * * * jf] jjjy opinion the importation of shives is hostile to 
the South. To import slaves, is to import enemies into our country. * * 
It is in direct contradiction to the principles of morality." 

The proposition was renewed in 1S06, by Mr. Sloan of New Jersey, and 
the friends of the measure again avowed the object to be " not revenue, 
but an expression of the national sentiment." " As to revenue, it is no 
object to me. I have another and a higher object ; to express our disappro- 
bation of this traffic, to manifest to the world that, as the representatives of 
a free people, we will, as far as we can, express our opinion of it." And in 
discussing the Act prohibiting importation after 1st January, 1808, there was 
a great diversity of opinion — a large proportion of members refusing to 
acknowledge that there could be property in men, or that slaves could 
be regarded as articles of commerce. So prevalent was this opinion, that 
Mr. Quincy of Massachusetts had to advance an elaborate and ingenious 
argument%to show that though in fact imported negroes were not property, 
yet it was rrecessary to use an " apjyropriate commercial term." He urged 
that they should be ^'forfeited,'" and taken by the revpnue officers as in the 
case of smuggled goods, not because they, like those goods, were property, 
and articles of commerce, but, as he expressed it, " hecause forfeit is the tech- 
nical word for getting the control of them, and the only certain way of 
making them secure of your humanity f "of giving efficiency to the rights of 
man, in respect to the persons so imported" — thus acknowledging humanity 
and the rights of man to be, in fact, the subject of legislation, and commerce 
only a technical cloak. In short, the whole record shows that a limitation of 
slavery was the object, not only entertained by all, but avowed by most ; 
only a few member ever alluding to the Act as a commercial regulation, 
and then only to cover themselves with a technical cloak. 

In view of these facts, the undersigned respectfully submits that these 
jrohibitory Acts were^ intended by the gi-eat majority of Congress, from first 
to last, as ^^ i^eace offerings" to jihilanthropy, and not regulations of com- 
merce. Olferings, however, which bring no peace. Every intelligent citi- 
zen of the United States knows that on this subject of slavery there is, 
and can be, no peace while the Union endures. There is none, and never 



31 

has been. No political party organization can secui*e it. No sectional 
movenicut short of dissolution can secure it. No administration can even 
invite it. Every effort must be vain. For no oiferino;, no Congress, no 
human power can unite in the bonds of peace, what God has put asunder — 
the infidel abolitionist and the slaveholder — the hireling and the slave 
States — the North and the South. 

The Supreme Court and the District Courts of the United States, are re- 
garded as the official interpreters of the Constitution. There are two de- 
cisions to which the undersigned now invites attention, as being either con- 
tradictory and irreconcilable, or else affording, when considered in connection, 
conclusive evidence that Congress has no authority to prohibit the slave trade 
by virtue of its power to regulate commerce. In the case of 'Grvvca and 
Slaughter, directly involving this question, it was decided that the State of 
Mississippi had the right to "forbid the introduction of slaves within her 
limits as merchiindise, from any other State." This, of necessity, is true of 
all the other States ; and, as a natural consequence, applies also to the intro- 
duction of slaves from any foreign nation. And since this prohibitory power 
belongs to the States severally, it would seem to follow that it does not be- 
long to (Congress, either as a regulation of commerce among them, or be- 
tween them and foreign nations. The powers reserved to the States respec- 
tively, are not delegated to their joint agent, the Federal Government; and 
those delegated to the latter, are not reserved to the former. It is impos- 
sible that any such substantive power as this can rest with both. In this case 
Chief Justice Taney, and Mr. Justice McLean, went so far as tc^ say that 
" the power to regulate traffic in slaves, between the difierent States, resided 
in the States separxitclij and exclusiielij — that /7ie Constitution did not con- 
sider slaves an merchandise, and that the action and regulation of the several 
States on this subject, did not trench upon the power of Congress to regulate 
commerce among them, and could not be controlled by it." 

In the case of Gihhon and Oydcn, it was decided that the power to regu- 
late commerce among the States, vested exclnsivelt/ in Congress. And there- 
fore uo State had a right to make any commercial regulation between itself 
and the other States. This, of course, applies also to commerce between a 
State and foreign nations. Now, if the slave trade is a branch of commerce, 
there is no ground for assuming that it is an exception ; it must be included. 
If it is not a branch of commerce, it cannot be regulated by Congress as 
such. But in spite of the eminent authority just cited, it is known that 
Co; gress does " regulate traffic in slaves between the different States," " as to 
the manner in which it maij he done." 

Here arc two decisions which have never been disputed as incorrect. One 
confirming the right of a State to 2>rohihit the importation of a certain de- 
scription of property, and the other denying the right of a State to rcfjulate 



'>l.> 

oZ 



the braiicli of commerce in which such importation is included. And since 
tliey are both correct, they cannot be contradictory or irreconcihible. How, 
then, are they reconciled ? By simply admittinp; the fact, that tlie p^-ohihi- 
tion in not a retjnkition. This admission reconciles them completely, and is 
the only means by which they can be reconciled. Ihus reconciled, they 
establish wh:it the undersigned urges — that the power to regulate commerce 
does not authorise Congress to prohibit ani/ branch of it — that the prohibi- 
tion of the importation of slaves into one State from any other State, or from 
a foreign nation, is the exercise of a right reserved to each State, respectively 
— an inalienable sovereign right, and not one delegated to Congress — and 
hence, that it is not an act for the regulation of commerce, either among the 
States or wiUi foreign nations, in the sense of the Constitution. 

But further — the several States having the right to prohibit the importa- 
tion of slaves from any source, suppose that each prohibited both the 
foreign and inter-State importation. This, it must be admitted, would not 
be a regulation of commerce, either with foreign nations or among the 
States. Now, suppose that, instead of the States acting thus separately, their 
joint agent, Congress, did precisely the same thing. Would that be a regu- 
lation of commerce? Does the essential nature of the act change accord- 
ing to the agency by which it is performed? If it is not a regulation of 
commerce in one case, what makes it such in the other? 

Having now adduced what appears to be evidence conclusive of the 
niea' ing of the term "regulate," as used in the Constitution, the under- 
signed submits to the judgment of the Senate, that the buying and selling 
of slaves is an adjunct of slavery, an incident in the system ; and the power 
to prohibit the adjunct, or abolish the incident, can be rightfully exercised 
by no other than the sovereign power which, alone, may abolish the institu- 
tion itself — the States respectively. That Congress has full power to make 
regulations for the uniform, safe and successful prosecution of the trade 
both amotig the States and with foreign countries; but that it has no power 
to prohibit it, and, therefore, that all acts to that effect are unconstitutional. 

It has been suggested that the power of declaring what articles of com- 
merce shall be contraband of war, illustrates a discretionary power, at any 
time, to forbid traffic in such articles. In the case of the United States vs. 
Bates and others, it was held that, "if the power to iwohibit was not in- 
volved in the power to regulate commerce, a state of war reveals its 
inadequacy to the necessities of that occasion. In prohibiting, by declaring 
certain articles of commerce contraband, power is exercised, often indispen- 
sable to the safety of a State or nation. It is true that an illustration, 
drawn from a state of war, is derived from an exceptional period in the his- 
tory of our country; but if it exists then, it exists at all other times; for 
there is no limitation of its exercise to a particular period. And, if it is 



said that it is an incident to the power to declare war, the answer is obvious, 
that there is no stronger implication of it in the power to declare war than 
in the power to regulate commerce." To show the error of this, it is suffi- 
cient to take a single case. Suppose the "illustration drawn from a state of 
war" between the United States and Brazil, and suppoye that gunpowder is 
the article declared contraband — the United States prohibiting the rest of 
the world from carrying it into Brazil, and Brazil prohibiting the rest of 
the world from bringing it here. To do thi.g, each belligerent has an indis- 
putable right. Now, it is held, that if this prohibitory right "exists then," 
that is, durifig w(ir, it exists " at all other times," that is, during peace, "for 
there is no limitation of its exercise to a particular period." In other words, 
Congress, by virtue of its power to regulate commerce, can, at any time, 
prohibit Great Britain, France, and all other powers, from exporting a 
single keg of gunpowder to any port in Brazil. And what is said of gun- 
powder, is true of all other articles of commerce which may be declared 
contraband. And what is said of Brazil is true of any other foreign nation. 
The conclusion, then, is, that Congress, by virtue of that power to prohibit, 
which is claimed to be involved in the cower to resrulate commerce with 
foreign nations, can, at any time, put a stop to a very material part of the 
commerce of the world, "by declaring certain articles of commerce contra- 
band." If this is not the logical conclusion of the premises, the undersigned 
misconceives it; but if it is, the error is evident. 

But it is further held that the power to prohibit any branch of commerce 
by declaring certain articles contraband, is not more strongly implied " in 
the power to declai'e war than in the power to regulate commerce." This 
is answered by the question, what gives the declaration of contraband the 
force of law ? Is it the mere parchment upon which it is written ? The 
principle of international law is fixed, that such declarations, like blockades, 
are to be executed by force, by armies and navies, or else they are not bind- 
ing, and this -is war. Now, if this "power to prohibit" cannot be exercised 
except during war, and then only as an act of war, it would seem that if it 
is implied in either the power to declare war or to regulate commerce, it ia in 
the former and not the latter. And if the power to prohibit the slave trade 
is not more strongly implied in the power to regulate commerce, than the 
power to declare articles contraband is, it is plainly not implied at all. 

But, correctly speaking, the power to declare contraband is not implied in 
either. It existed at the moment the colonies went to war as an indepen- 
dent nation, under the Continental Congress, twelve years before the Consti- 
tution authorised Congress to regulate commerce. And having existed 
before the Constitution was made, it certainly cannot be derived from it. 
It is derived from that system of rules which reason and custom have estab- 
lished for the regulation of the intercourse of nations. At the present day, 



34 

what i's contraband is in most cases already determined by the law of nations. 
The received doctrine is, that the 7isns beUici determine an article to be con- 
traband, and statute law or treaty stipulations are only declaratory of the 
fact. Whereas, the Acts of Congress forever prohibiting the slave trade are 
something more than declaratory; and the native African, never has, in 
modern civilized warfare at least, been assimilated with the ^ims helllcl, nor 
has he, as an "article of commerce/' been declared contraband of war. 

It is true the Federal Government may declare an article of commerce 
contraband which has not been heretofore considered as such ; but, if it is 
not adapted to warlike purposes, and is evidently not designed for the mili- 
tary use of -the other belligerent, the neutral powers aifected by the conse- 
quent interference in their commerce, would rightfully oppose the enforce- 
ment of the declai'ation, as has frequently been done in similar cases. The 
truth is, the question of contraband, when arising with respect to any article 
not generally included in the contraband list, concerns all neutral nations 
interested in the traffic in the article, and therefore pertains more properly 
to international than municipal law. In the treaty of 1794, between the 
United States and Great Britain, a contraband list was incorporated, and the 
Federal Government has taken frequent occasion to admit that it was m.erely 
declaratory of the law of nations. In other treaties similar declaratory lists 
have been included. And perhaps it may be, that not only in this but other 
countries, the declaration of contraband is the exercise of a power pertaining 
more appropriately to the Executive Department of Government — the treaty 
power — than to the legislative department. 

But wherever this power rests, it would seem, from its very nature, impos- 
sible that its exercise can be a regulation of commerce. The declaration of 
articles to be contraband, either by act or by treaty, is also a declaration of 
what are lawful. It is a public announcement that when the United States 
are at war with the power with whom the treaty is concluded, or with re- 
spect to which the act is passed, they will allow neutrals to carry on com- 
merce with that power in all articles except those enumerated — that they 
will allow such articles to pass unmolested. And if it serves to regulate 
any thing falling under the federal jurisdiction, it is the conduct of army 
and navy officers respecting the property of neutrals. The foreign conmierce 
desiszued to be regulated by Congress, is that carried on between residents of 
the United States and those of foreign nations, and not that which is carried 
on exclusively between foreign nations. But the declaration of articles to 
be contraband, applies solely to the latter— to property in transit between 
foreign ports, or owned by foreign owners, and in process of transfer to foreign 
buyers. How, then, can such declaration be a regulation of commerce 
between residents of the United States and those of foreign nations ? During 
war residents here cannot trade with the enemy; all such commerce ceases. 



35 

It would be treason to give aid and comfort. Their property, therefore, can 
go only to neutral ports, and that too in neutral vessels, or vessels owned in 
the United States. So also with the property of neutrals coming to this 
country. But the declaration of contraband does not include such property; 
it applies exclusively to property going to the enemies' ports, or on board the 
ene'.iiies' ships. And since such neutral and American property is excluded 
from the meaning of the declaration, and its transfer is at the same time the 
only commerce which can lawfully be carried on with foreign nations during 
war, or in other words, during the time the declaration is of force, it is mani- 
festly impossible that the power to declare articles contraband of war can be 
implied in the power to regulate commerce. And if the power to prohibit 
the slave trade is not more strongly implied in the power to regulate com- 
merce, it is simply nut implied at all. 

It has never been claimed, with any show of argument, to be implied in 
any other power granted in the Constitution, and hence its exercise is a mani- 
fest usurpation, and the acts in question arc wholly unconstitutional, and 
ought to be pronounced null and void, if not repealed by the authority which 
passed them. 

But it may be said, admitting that the power to prohibit the slave trade 
is not as clearly delegated to Congress as a strict construction of the consti- 
tution would require, yet there was an ^uiderstandinrj among the members of 
the Federal Convention that the power might be exercised after the year 
1808 — that this, in point of fact, was one of the ^^compromises of the consti- 
tution," and is as binding as though it were written in the compact. That 
there probably was some understanding among the members of the conven- 
tion, the undersigned wi 1 not undertake to deny ; but, if there was any, he 
will endeavor to show what it really must have been, after briefly adverting 
to a few collateral considerations. 

It is sometimes erroneously said that the rendition of fugitive slaves was 
an equivalent agreed upon by the North for the surrender of the right to 
import slaves by the South. Without stopping to show the .error, let it be 
suppo-sed for a moment that this was so — How has the compromise been ob- 
served by the North, and the promise kept ? Slaves to the value of hun- 
dreds ot thousands of dollars are annua ly enticed away and stolen from their 
lawful owners, by citizens and incorporated societies of the hireling States, 
and this with the certain knowledge that the laws of their States, or the de- 
cisions of their courts, will protect them in their theft. If a fulfillment ot 
the "compromise" is claimed, the claimant is resisted by a mob, and some- 
times murdered by those who Janmo they will escape unwhipt of justice. The 
oflSiccrs of the Federal Government, when seeking to execute the "compro- 
mise," have been overpowered and defied. The Judge of a State court has 
been deposed by the Legislature of his State for discharging his sworn duty 



36 

in exoeuting the "compromise." It has been necessary to subdue the mobs 
of Boston with a portion of the Federal army, in order to execute the "com- 
promise." The Legishitures of many of the States have prohibited their citizens 
from keeping the promise ; and in some, if the claimant escapes the mob 
alive, he is consigned to the penitential ^ for a term of ten years for attempt- 
ing a recovery of his property. 

But not only is our property purloined; the rightful settlement of 
territory is denied us; and our peace and tranquility are jeopardized. The 
only principle of adhesion in the great political party of the hireling States, 
is that of undying hostility to the South. The crusade is preached from 
both pulpit and rostrum, and is re-echoed at the street corners and market 
places, and firesides. Emissaries have been sent among us to stir up revolt, 
and incite our peaceful population to massacre, conflagration and rapine. 
The most flagitious and incendiary publications have been disseminated 
throughout the country, in the eff"ort to sow dissension and create disatfec- 
tion among the ignorant, and to rouse the fiercer passions of the vicious. 
And all this by a people who claim to bind the South by the imaginary con- 
ditions of this unwritten "compromise:" a people who, if there ever was 
such a compromise, have wilfully and persistently broken their faith, and 
forfeited the confidence and friendship of their Southern confederates. In 
consequence of which, it is not only inevitable, but proper, that on the sub- 
ject of slavery there can be no comity, nor even amity, between the two 
antagonistic and hostile sections of the Union. The South clings to a shat- 
tered wreck when faith is placed in any so-called "compromise" of the 
Constitution on this subject ; and is self-sacrificing, to say the least of it, in 
observing any alleged obligation which is not unquestionably imposed by the 
Constitution itself, according to the strictest construction. 

The undersigned, however, regards this arrangement of the framers of 
the Constitution in a diS"erent light from that in which it is frequently pre- 
sented. It has been shown that in the Constitution there is no express grant 
of power to prohibit the importation of slaves, and that there is no implica- 
tion of it in the power to regulate commerce. It is not claimed to be im- 
plied in any other power. The Constitution, therefore, though it expressly 
p>roMhits the interdiction of the trade jjrior to the f/earlSOS, docs not author- 
ize such interdiction after that time, and any opinion based upon the supposi- 
tion or belief that it does, must be erroneous. But it is clear there must 
have been a reason for assigning that date. And what this reason was, will 
now be shown. 

It must le remembered that the main question before the Convention, ou 
this subject was, whether the Constitution itself should allow or prohibit 
the trade, and not whether Congress should have power to prohibit it at its 
discretion. This is a very material point, and is fully substantiated by 



. 37 

The .ubjeotof i,„p„rti„g slaves, as already sh„,v„, was first brought before 
I c Conve,, ,o„ by tl,e Committee of Detail, iu a proeautiooary eEuse m-o- 
h,bU„,g us ,„terd,ct.on altogether, and to be sure that it wouuf „„t bo !Z. 
rec,, .,.tord,eted by a burdeosome tax. it was e.en.rted from i,„,,„rt d„ io 
Th.s was thought noeossary to sceure the rights of South Oaroli ,a, Goor.-ia' 
and the Western torntory, against the Northera States and Virginia and 
Ma,^land; but ,t wa. objected to, and the elanse was ro.eon.n,itted a"d 
fim.ny a opted ., ,ts present form, (1st elause 9 sec. 1 art.) To under t.,d 
wlueh, ,t must be consulcrcd in connection with another provision of tho 
compact vz: That relating to an.endn.ents. And when so e„ r 
amb,gu,ty and doubt is removed. Art. 6 provides "that „o amllnie 
which may be made prior to tl.e year 1808, shall in any manner affect the 
A™« a„dyb„rt/. clauses m the 9tl, see. of the 1st art." In both this provisio 
and .u tho elause relating to imported slaves, it will be seen that the exprcs^ 
™n " pr.or to the year 1808," is used. And their meaning, when co„sid„r!d 
together, as they must necessarily be, would be just the s^me if the «, es- 
™„ had been omitted iu the latter instance. This is probably bcsttl ow , 
by putfng the two forms of expression in juxtaposition ' 

As ,,riUen m the ComMulic. The „j,ress;on omitM /„ CT„„ 1, 

" The migration or importation, &c., Sx.9,Art.\. 

shall not bo prohibited by the Con- " The migration or in.portalion &c 
gross, i„:or ,o t,.,ear 1808, but a shall net be prohibited by the CW 
tax or duty may be impcscd," &e. gross, but a tax or duty n.ay be . 

"iVo amendment which may be posed " &c 
made j.,w,„,/.cy«,. 1808, shall in -No amendment which mav bo 
any manner aflect" tho above clause, made prior to the ,«tr 1808, shall i„ 

lany manner affect" the above clause. 
To show more clearly tho meaning of the Convention, a word n,ay be said 
as t.> the other elause, with respect to which no amendment is allowed pr or 
to the year 1808 It will be remend,ered that the subject of inlrt „ 
slaves, and of eap.tation and direct taxes, were originally considered to ther 
. the Convention. We here find them under the sanfe proviso. The 4th 
cause of sec. 9, art. 1 of the Constitution, reads thus: "No capitation 
other d,rec U., shall bo laid, unless in proportion to the census „ e , era 
t.on hercnbefore directed to bo taken. ' This is aUo to be considers n 
connection with the proviso in the article relating to amendment. n 

when so considered, it will be found to mean the samcx, though the oxnres 
SKin 'pnoi. to t,,„ y,„ !«„«„ ,„j ,„^„ .^^^^^ ^^^^ ^^^^ . J^^o^ 



As written in the Constitution. 

No capitation or otlier direct tax, 
shall be laid, &c., &c. 

" No amendment which may be 
made j;»/-/o/- to the year 1808, shall in 
any manner aifect" the above clause. 



The expression hichided in Clause 4, 
Sec. 9, Art. 1. 

No capitation, or other direct tax, 
shall be laid, ^jr/or to the year 1808, 
&c., &c. 

"No amendment which may be 
made prior to the year 1808, shall, in 
any manner afi'ect" the above clause. 



Now, it is just as certain that the proportion in which this tax must be 
levied could not have been changed prior to the year 1808, as it is that the 
importation of slaves could not have been prohibited prior to that time. 
Yet, in the former, the expression "prior to the year 1808 " is omitted, and 
in the latter inserted. But since, in consecjuence of the wording of the proviso, 
the omission or insertion of the expression does not affect the possibility of 
amending either clause previous to the year 1808, it follows that the insertion 
of it in the 1st clause does not affect its meaning, and is mere surplusage.. 
If, indeed, there were no such proviso as that found in the 5th article, the case 
would be different. Or, if power to prohibit the slave trade after the year 
1808 were granted elsewhere in the Constitution, it might be claimed that 
the proviso was intended only to guard against amendments until the year 
1808 and had no bearing upon the object of the clause. The power being 
withheld previous to, and granted after that date, the question would be put 
to rest upon its arrival, for the intention of the Convention would be too 
evident to be mistaken. But since no such power is granted, and since the 
proviso is pointedly incorporated in the 5th art., and applies equally to 
another clause which has no reference to the year 1808, there is no alterna- 
tive left to consider the clause and proviso in connection, as though they 
were one clause. By so doing we will arrive at the real intention of the 
Convention, which will now be explained. 

The two opposite opinions in that body were, that the Constitution ought 
to prohibit, in terms, the entire slave trade, without leaving it to the discre- 
tion of Congress ; and, on the other hand, that the subject ought to be left 
exclusively with the States as theretofore. Virginia may be said to have been 
the leader of the one, and South Carolina of the other opinion. Many of 
the New England delegates, and some from the Middle States, though 
inimical to the traffic, were opposed to jeopardizing the whole compact by 
insisting on a point so totally repugnant to the sentiments and interests of 
the more Southern State?. But they knew the deep-seated prejudices of 1 
their people on the subject. In one scale they weighed the paramount im- 
portance of the Union to the commercial interests of their section, and in the 
other the difficulty of reconciling their constituents to any proposition which 



89 

morally countenanced the trade. The only basis of compromise, then, so 
far as they were concerned, niust be such as would throw a balance in the 
scale of Northern commercial interests. The South, they saw, was divided 
(as now) on a mixed question of ??io;v;?.') and intere t, and had taken positions 
from which there was no retreat; while their section, not being directly in- 
terested in the institution of slavery, felt exempt from any moi\d responsi- 
bility for it, in spite their montl opposition to it ; but they were united in 
the deepest solicitude for the expansion and prosperity of their commerce. 
Such was the state of feeling in the convention when Governeur Morris said 
he "wished the whole subject to be committed, including the clauses relating 
to taxes on exports, and to a navigation act. These things may form a har- 
r/at'n among the Northern and Southern States." And the commitment was 
accordingly made. The approaches to a compromise were thus opened. The 
Southern sentiment readily conceded the justness of a reasonable tax on im- 
ported slaves, but it was firm in ojJjJosini/ a j)>'Qhibifi'oii of their importation. 
The Northern sentiment showed a willingness to let the question of import- 
ing slaves remain in suspense, if, by yielding that much, it covild bring the 
South to consent to the passage of navigation acts by a plurality vote in 
Congress, instead of a vote of two-thirds, as previously agreed to. Northern 
delegates wished only to satisfy their constituents morally, and thought if 
they could point out aomQ future dai/vj^on which it would be in their power 
to amend the constitution so that the slave trade would be prohibited, it 
would be sufficient, in view of the profitahle control of navigation having 
been yielded to them. Theij were not desirous of then giving Congress au- 
thority to jwoh Hit the trade ; hence, such authority was not granted, for 
they well knew that if it were once granted, nothing would prevent its im- 
mediate exercise, a very large majority of the people in most of the States 
bein<"- in favor of it. And of this fact they knew Southern delegates were 
aware. Hence, they knew the South would never consent to a delegation of 
the power to Congress as an alternative. It was lor this reason that Mr. 
Sherman, of Connecticut— one of the most influential of the New England 
delegates— and himself opposed to the trade, urged upon the convention 
that it would be "better to let the Southern States import slaves than to part 
with them, if they made that a sine qua iion. * * * If the 
power of prohibiting the importation should be given to the General G' n • 
ernment, it would be exercised. It would be its duty to exercise the 

power." 

Southern delegates, by this time, perceived that in whatever form the 
clause should pass the convention, it could, at any subsequent tin;e, be 
ehano-ed, by way of amendment, for at least ten States would be certain to 
vote an amendment, should any be proposed, prohibiting the importation. 
In a«i-reeing, then, that some future time should be fixed, until which tlio 



40 

importation should be allowed, it became important to guard against any 
possibility of change. It was also apparent that to proht'Lit importation af- 
ter the time fixed, would be just as objectionable in point of principle, as its 
prohibition then. On the other hand, it was thought that the time mir/ht 
cmne when there would be no objection, in point of interest, to the entire 
suppression of the trade. The question then was, how to satisfy these three 
conditions — -firsts to fix a time ])rior to which these ten States could not 
amend the Constitution in relation to this subject; sscond, to agree upon a 
period during which the number of slaves required by the South might be 
reasonably expected to be imported ; and ^/u'a7, not to invade the principle 
for which South Carolina and Georgia contended, viz : that the policy of 
importing slaves rested exclusively with the several States, and, therefore, 
that the Constitution should not prohibit it contrary to the wish or interest 
of any. The most obvious way was that finally agreed upon ; for it avoided 
the question of principle, and postponed the settlement of the whole subject, 
till such time during, or after, the year 1808, as the States then comprising 
the Union might think proper to amend the constitution. Mr. Rutledge ef- 
fected this arrangement. He expressed the sentiments of the Southern dele- 
gates, when he assured the Convention that "he never could agree to give a 
power by which the articles relating to slaves might be altered by the States 
not interested in that property, and prejudiced against it." The power was 
therefore not given, and the whole question was left open for settlement, by 
amendment, during, or after the year 1808 importation being guarantied in 
the meantime. And until some amendment is made either prohibiting the 
importation of slaves, or authorizing Congress to do so, the power remains 
where it was when the Constitution was ratified, viz : with the States 
respectively. 

This compromise of the Constitution, if it may he so called, was that the 
majority of Congress should be authorized to pass navigation laws. This se- 
cured the object of the Xorth. In consideration of which, the importation 
of slaves was to be guarantied to the South for twenty years, against all in- 
terference or amendment by the North. After that time this special guar- 
antee ceased, and the subject became one concerning which amendments 
could be proposed and adopted as provided in the Constitution. No such 
amendment has been made, and the whole matter reverts to the stage in 
which it was found, when the convention assembled in 1787, and so remains 
until such amendments are made. 

Th.j undersigned is aware that this is not the generally received opinion ; 

i)ut .since it is the only one for which he can assign adequate reasons, he 

•annot hesitate to adopt it. The impression, so prevalent, that the under- 

canding was, that the importation was to be allowed until the year 1808, 

vpon condition that Congress should have power to prohibit it after that time, 



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